A Trump Impeachment Has Risks, But They Are Worth Taking

A baby sits in a stroller in front of a sing that reads 'impeach' while a protest group called Rise and Resist holds a protest in front of Trump Tower demanding that The Trump Organization executives 'cooperate with Congress' on March 21, 2019 in New York City. House Democrats recently launched a sweeping new probe of President Donald Trump. (Photo: Stephanie Keith/Getty Images)

In an ideal world, the thought of impeaching Donald Trump would warrant at least three cheers, along with some somersaults and a marching band (my preference would be for a New Orleans Second Line led by Trombone Shorty). Yet in an ideal world Donald Trump would be nothing but a bad dream. Our world is far from ideal. And so we have a deeply flawed and dysfunctional political system; an angry and credulous Republican base; a corrupted Republican Party in control of the Senate and much else; and Donald Trump in the White House, in control of a vicious bully pulpit and enabled by the vast quasi-state propaganda agency that is Fox News.

And so there are risks for the Democrats to proceed to impeachment. Political risks. For it is obvious that no House-led impeachment proceeding, however well-orchestrated and compelling, can possibly result in a Senate conviction of Trump; the consistent conduct of Senate Republicans for over two years makes this clear. There is thus a risk that an impeachment could be framed as both “overreach” and “failure,” and thus could strengthen Trump’s hand in 2020.

The risk is real. But it is not as great as it might seem. In addition, there are risks, great risks, associated with doing nothing — as Nancy Pelosi and Stenny Hoyer would seem to prefer — or proceeding with deliberate caution combined with cautious deliberation — as Jerry Nadler and Adam Schiff would seem to prefer. At the same time, there are great opportunities associated with impeachment. Thus the two cheers.

"The risk is real. But it is not as great as it might seem. In addition, there are risks, great risks, associated with doing nothing."

The case for impeachment cannot be made unequivocally. But I believe it is a strong case. In what follows I will lay out its rudiments.

1. The Mueller Report presents a damning ethical and political indictment of Trump even if it does not recommend a legal indictment. Any serious reading of the Report makes clear that Mueller and his team believed that Trump has committed at least ten forms of obstruction of justice. Ten. Indeed, William Barr’s bullshit to the contrary, the Report also makes clear that there was extensive collusion between the Trump campaign and Russian government-linked actors, even if the collusion did not rise to the level of a chargeable criminal offense (and let us not forget that one reason it did not so rise is that Mueller faced multiple forms of obstruction, and could not or did not interview two of the principals — Trump and Trump, Jr.). The Report documents a level of unethical and politically dangerous behavior by Trump, both in pursuit of office and in office, that is egregious, and might well be unprecedented in U.S. history.

For over a year, Democratic leadership has consistently responded to all questions about holding Trump to account through impeachment by saying “we need to wait for Mueller to complete his investigation.” Well, the investigation is now complete. And while it did not lead to new indictments, it was obvious from the start that it would almost certainly bring no indictments, and certainly not an indictment of Trump. But it did bring over four hundred pages of documentation of serious malfeasance. The knowledge is there. There is no longer any justification for “waiting.”

2. There is this thing called the U.S. Constitution, and it furnishes Congress with oversight responsibilities that include the right to impeach, convict, and remove a President from office for “high crimes and misdemeanors” associated with a failure to fulfill the obligations associated with the presidential oath of office. The Mueller Report makes clear that while Trump promised “to the best of my ability, preserve, protect and defend the Constitution of the United States,” he has in fact consistently demeaned, flouted, and violated the Constitution, and has sought to preserve, protect, and defend himself, the rule of law be damned.

Congress has a constitutional duty to hold this President to account via impeachment. It is ironic that while the House Democratic leadership dances gingerly around this responsibility, it is some of the newer and younger House Democrats, including two democratic socialists, Rashida Tlaib and Alexandria Ocasio-Cortez, who have taken the lead on emphasizing the importance of constitutionalism (these democratic socialists are proving themselves to be more committed to democracy than a great many of their colleagues).

"The Mueller Report makes clear that while Trump promised “to the best of my ability, preserve, protect and defend the Constitution of the United States,” he has in fact consistently demeaned, flouted, and violated the Constitution, and has sought to preserve, protect, and defend himself, the rule of law be damned."

3. Of course, impeachment is a political and not a strictly legal process, and so it can only commence on the basis of political judgments about whether or not presidential malfeasance rises to a level of “high crimes and misdemeanors” rather than low ones, and whether such malfeasance constitutes a real threat to the republic. At the same time, it has been obvious for over two years, at least to almost all Democrats and many others as well, that Trump’s actions do constitute a threat to the republic. This is a political judgment, not about the next election but about the state of democracy itself.

4. The Democratic House leadership has been extremely circumspect about impeachment. A cynical interpretation of this cautiousness would be that these leaders might be legislative leaders but they are not broad, national political leaders, that they are not predisposed to make and act upon such strong political judgments about the state of democracy, and that they are all about winning elections and thus retaining the powers of incumbency. Such a cynical interpretation has some merit. But it is insufficient.

For their circumspection also has merit — to a point. The political judgment that Trump constitutes a threat to democracy, and must be removed from office, is necessarily linked to another and equally important political judgment: what is the best and most likely way to remove him from office? For it would be absurd, and obviously counterproductive, to move to impeachment because Trump is an imminent danger, if doing so were to weaken the chances of winning the 2020 elections and thus strengthening the chance that Trump would win in 2020 and thus extend his dangerous presidency until 2024. For this reason, the questions posed by Democratic leaders who are reluctant to impeach Trump — including the contenders for the Democratic presidential nomination who, with the exception of Elizabeth Warren, have been fairly mute about impeachment– have credibility, and must be engaged, and criticized. And while I strongly believe that there are ethical and constitutional arguments for impeachment, it is ultimately the political argument that is dispositive.

In short, it is politically foolish to reject impeachment, and politically wise to move forward with it.

5. The reason it is politically foolish to reject impeachment is simple: while it is true that an impeachment process, along with Congressional Republican efforts to obstruct it, is bound to further inflame Trump’s base, it is also true that Trump’s base is already highly inflamed, and for all intents and purposes can be regarded as politically immovable. Further, it is certain that Trump will continue to employ every demagogic tool in his dictatorial playbook to further inflame this base, regardless of what the Democrats do or do not do. Democrats need not worry about the effect of impeachment on Trump’s supporters. For Trump will continue his permanent campaign of xenophobia and red-baiting regardless, and he will also continue to attack Democrats and Mueller for their so-called “witch hunt” and Russia hoax.” It seems likely that Trump and Barr will also commence some kind of investigation of the Mueller investigation itself. Trump will do this because he is a cruel and vengeful man, but also because he knows that such moves will further energize the sick synergy between him and his base. Democrats cannot simply “move beyond” the Mueller Report, because it is pointless, and Trump will not move beyond it anyway. It’s like a gigantic elephant — or should I say JACKASS — in the room. It is unavoidable.

6. The reason why it makes sense to move toward impeachment is equally simple: while Trump’s base is beyond the pale, the Democratic base is very much in play, and much of this base is already strongly mobilized against Trump. The House Democratic leadership can try to put a brake on this. But this would be very short-sighted. Because this mobilized base is a key to victory in 2020 and beyond, just as it was key to the “blue wave” in 2018.

"The notion that we should stop focusing on Trump and focus on 'the real issues' rests on two equally absurd ideas: that Trump’s authoritarianism is not itself a major issue, and that Trump's authoritarian means are not inextricably linked to his terrible inegalitarian policy goals."

7. This does not mean that “collusion with Russia” or even “obstruction” is or ever was the central political concern of most Americans, and it surely does not mean that impeachment is in any simple sense a sufficient political strategy to oppose Trumpism. But it does mean that after all of the rhetoric and posturing and mobilizing around “resistance,” where “resistance” meant not simply “win the next election” but “oppose a despotic president,” it is foolish, and indeed unrealistic, to imagine that it is possible now, after the very real revelations of the Mueller Report, to have a political opposition based simply on “what the voters want” or “bread and butter issues.” Political indignation, and political energy, cannot be turned on and off like that, even if some self-important politicians like to think they can do it. The effort to do so is unquestionably counter-productive. It is a form of political bad faith. And it is a “play it safe” strategy at a time in which fundamental questions about the future are at stake, and the other side — the side of Trump and his Republican Party — will stop at nothing to win.

8. While the political indictment of Trump is no magic bullet, it now is thus a necessary part of a broader strategy to expose Trump and to weaken him, his party, and what they stand for. As I have argued repeatedly for two years, the notion that we should stop focusing on Trump and focus on “the real issues” rests on two equally absurd ideas: that Trump’s authoritarianism is not itself a major issue, and that Trump’s authoritarian means are not inextricably linked to his terrible inegalitarian policy goals — the “issues” of which others speak.

Trump is hostile to civil rights and civil liberties.

Trump is hostile to the norms of pluralist democracy and the equal voting rights of citizens.

Trump is hostile to all forms of social citizenship: labor rights, social rights, reproductive freedoms, “social security” broadly conceived, and environmental stewardship.

Trump, in short, is hostile to civic equality and to democracy.

9. This hostility is a thread that runs through all of his major initiatives: the effort to destroy the Affordable Care Act and replace it with nothing; the effort to appoint corporate executives hostile to regulation to head major regulatory agencies; the tax cuts and court appointments; the policies of policing, detention, incarceration, and deportation; “the wall”; the corruption of the Justice Department and the gutting of voting rights enforcement; the rhetorical mobilization of hostility to political opponents and to the free press.

I am not saying that there is a simple bright orange line linking all of these things together. But the links are real nonetheless.

And all of these things are inextricably linked to Trump’s more general hostility to due process; his nepotism, corruption, and manifest violations of the emoluments clause of the Constitution; the ways he is using his office to enrich himself and his family; and the ways that his conduct displays an utter contempt for the concerns ordinary citizens.

In all of these ways, Trump has endangered important elements of civic equality, the rule of law, and orderly governance. And at every step along the way, the Republican Party has supported and enabled him. To politically indict Trump is thus also to indict, by implication, the entire Republican Party. And it is to make a very public case for their replacement.

10. Placing the Mueller Report in this broad narrative is not only possible. It is indeed fully consistent with the House Democratic majority’s first major piece of legislation: HR 1, the “For the People Act,” passed by an almost straight party-line vote, 234-193. This legislation is all about democracy, focusing on transparency, accountability, voting rights, and electoral reform. And by opposing and denouncing this bill, the Republicans have made their opposition to these concerns clear. HR 1 does not include universal health care or a $15 federal minimum wage or debt relief for college students or affordable housing or any kind of Green New Deal. But all of these things are animated by the same broadly egalitarian spirit that animates HR 1. And only through greater democratization of the political process will it be possible not simply to win the next election, but to perhaps mobilize a progressive majority, and to build the kind of broad public support necessary to sustain the kinds of policies mentioned above.

Democracy. For the People. Against Trump. Begin the impeachment of Trump. These things go together.

11. A serious impeachment process would obviously have to be a carefully orchestrated investigative and deliberative process centered on a well-defined set of legally chargeable constitutional violations. The Mueller Report documents a great many violations to investigate and then potentially charge. There may well be other chargeable violations as well, related to campaign finance law, the emoluments clause, or tax fraud, or even possible violations of national security (the President has very wide latitude in this domain; but the absurd way that he has flouted security clearance processes to advance his relatives ought to be highlighted nonetheless).

The purpose of such an impeachment process would be to investigate serious instances of actual or suspected malfeasance. But also to educate the public. It would be a chance for Congressional Democrats to organize a very public process of identifying the very real Constitutional violations of the Trump Administration and the very real consequences of these violations for democratic fairness, and in doing so, to project an alternative, more egalitarian, interpretation of the Constitution and of democracy.

The Resolution advanced to the House by Representatives Rashida Tlaib (MI) and Al Green (TX) on March 27, 2019, proposes exactly this:

Inquiring whether the House of Representatives should impeach Donald John Trump, President of the United States of America.

Resolved, That —

(1) the Committee on the Judiciary shall inquire whether the House of Representatives should impeach Donald John Trump, President of the United States of America;

(2) the Committee on the Judiciary or any subcommittee or task force designated by the Committee may, in connection with the inquiry under this resolution, take affidavits and depositions by a member, counsel, or consultant of the Committee, pursuant to notice or subpoena; and

(3) there shall be paid out of the applicable accounts of the House of Representatives such sums as may be necessary to assist the Committee on the Judiciary in conducting the inquiry under this resolution, any of which may be used for the procurement of staff or consultant services.

This Resolution does not call for the removal of the President. It simply — but crucially — calls for a serious and sustained Congressional investigation into whether the House should impeach the President, a question that has been on the minds of a great many people for at least two years. This is a first step on the possible road to impeachment. Where it leads cannot be known in advance. But by taking this step, the Democrats can put Trump and the Republican Party on notice: there will be a real, public, constitutionally prescribed, and very legalistic but also very political reckoning for the very serious ways that Trump has abused his office and corrupted the political process, a reckoning that will focus on Trump himself, but that will politically implicate all of his enablers.

Nancy Pelosi said last month in a Washington Post interview that she did not support pursuing impeachment: “I’m not for impeachment. Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”

"Taking the Mueller Report seriously, and commencing an impeachment inquiry, does not in any way preclude conducting a broader policy debate about universal health care or affordable housing or environmental sustainability or tax reform."

But that is precisely the point: to enact a clear division, between those who support the values of democracy and those who oppose them or at least are willing to let them be traduced with abandon.

House Republicans will try to stymie the process. If it moves to an impeachment trial, Senate Republicans will surely obstruct the prosecution of the case and then vote against a conviction. All the while, Trump will lie, and obstruct, and mobilize his base, ever angrier and angrier, against the Democratic Party, against the press, against liberals, and against constitutional democracy. And the rest of the country will see this entire process take place, in plain public view. And if Democratic leaders are wise, the country will also see Democratic politicians acting with integrity and articulating a serious and compelling conception of democracy.

For Congressional Democrats to refuse to do this would be for them to refuse their own constitutional responsibility. But it would also be an act of political cowardice.

Taking the Mueller Report seriously, and commencing an impeachment inquiry, does not in any way preclude conducting a broader policy debate about universal health care or affordable housing or environmental sustainability or tax reform.

Democrats in Congress can continue to split their time between their legislative activity and their own campaigning on the issues. And the Democratic candidates for the presidential nomination can continue to organize their campaigns, and travel the country, and conduct their debates about policy.

"The Trump presidency is not a “normal” presidency, Trump is not a normal president, and the 2020 election will not be a normal election. Impeachment will not remove Trump from office. Only the election can do that."

And at the same time, these Democrats can demonstrate that they have the courage of their democratic convictions, and that they are united behind these convictions. Such conduct will not impress Trump’s hard-core supporters — but nothing will. Yet it can impress all of those citizens who are not died-in-the-wool Trumpists. And it can inspire and even expand the Democratic base. And perhaps through such action, Democratic politicians can even inspire themselves, and come to realize that democracy is about more than simple political calculation and electoral opportunism.

Does such a political strategy have risks? Yes. Can it fail? Of course. All political strategies have risks, and none are assured of success. But business as usual also has risks. The Trump presidency is not a “normal” presidency, Trump is not a normal president, and the 2020 election will not be a normal election. Impeachment will not remove Trump from office. Only the election can do that. But impeachment can be a shot across the bow, a serious enactment of constitutionalism, and a very public “reality show” featuring a real contest between a dangerous President and his craven Republican supporters on the one hand, and a politically compelling Democratic Party on the other.

Can the Democratic Party truly be a compelling party that is true to its name?

We shall see.

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A belated, heartfelt happy birthday to Harvey Milk, assassinated in 1978 for daring to come out of the closet, be himself and insist on his rights, who would have turned 89 this week. On Harvey Milk Day, California passed a resolution honoring his "critical role in creating the modern LGBT movement." From one ally: "He imagined a righteous world inside his head and then he set about to create it." These dark days, his message resonates more than ever: "You stand up and fight."

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